603 F.3d 1002 (D.C. Cir. 2010), 09-5126, Newdow v. Roberts

Docket Nº:09-5126.
Citation:603 F.3d 1002
Opinion Judge:BROWN, Circuit Judge:
Party Name:Michael Arthur NEWDOW, et al., Appellants v. John G. ROBERTS, Jr., Chief Justice of the U.S. Supreme Court, et al., Appellees.
Attorney:Michael Newdow argued the cause for appellants. With him on the briefs was Robert V. Ritter. Lowell V. Sturgill Jr., Attorney, U.S. Department of Justice, argued the cause for appellees John G. Roberts, Jr., et al. With him on the brief was Mark B. Stern, Attorney. Brad P. Rosenberg, Attorney, en...
Judge Panel:Before: GINSBURG, BROWN, and KAVANAUGH, Circuit Judges. Opinion concurring in the judgment filed by Circuit Judge KAVANAUGH. KAVANAUGH, Circuit Judge, concurring in the judgment:
Case Date:May 07, 2010
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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603 F.3d 1002 (D.C. Cir. 2010)

Michael Arthur NEWDOW, et al., Appellants

v.

John G. ROBERTS, Jr., Chief Justice of the U.S. Supreme Court, et al., Appellees.

No. 09-5126.

United States Court of Appeals, District of Columbia Circuit.

May 7, 2010

Argued Dec. 15, 2009.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-02248-RBW).

Michael Newdow argued the cause for appellants. With him on the briefs was Robert V. Ritter.

Lowell V. Sturgill Jr., Attorney, U.S. Department of Justice, argued the cause for appellees John G. Roberts, Jr., et al. With him on the brief was Mark B. Stern, Attorney. Brad P. Rosenberg, Attorney, entered an appearance.

Dominic F. Perella argued the cause for appellees Presidential Inaugural Committee and Emmett Beliveau. With him on the brief were Craig A. Hoover, Catherine E. Stetson, E. Desmond Hogan, Robert Bauer, and Andrew Werbrock. Marc Elias entered an appearance.

H. Robert Showers and Kevin T. Snider were on the brief for appellees Joseph Lowery and Richard Warren.

James Matthew Henderson, Sr. was on the brief for amicus curiae American Center for Law & Justice in support of appellees.

Greg Abbott, Attorney General, James C. Ho, Solicitor General, C. Andrew Weber, First Assistant Attorney General, Adam W. Aston, Assistant Solicitor General, David S. Morales, Deputy Attorney General for Civil Litigation, Candice N. Hance, Assistant Attorney General, Attorney General's Office of the State of Texas, Troy King, Attorney General, Attorney General's Office of the State of Alabama, Daniel S. Sullivan, Attorney General, Attorney General's Office of the State of Alaska, Terry Goddard, Attorney General, Attorney General's Office of the State of Arizona, Dustin McDaniel, Attorney General, Attorney General's Office of the State of Arkansas, Edmund G. Brown, Jr., Attorney General, Attorney General's Office of the State of California,

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John W. Suthers, Attorney General, Attorney General's Office of the State of Colorado, Richard Blumenthal, Attorney General, Attorney General's Office of the State of Connecticut, Joseph R. Biden, III, Attorney General, Attorney General's Office of the State of Delaware, Bill McCollum, Attorney General, Attorney General's Office of the State of Florida, Thurbert E. Baker, Attorney General, Attorney General's Office of the State of Georgia, Mark J. Bennett, Attorney General, Attorney General's Office of the State of Hawaii, Lawrence G. Wasden, Attorney General, Attorney General's Office of the State of Idaho, Lisa Madigan, Attorney General, Attorney General's Office of the State of Illinois, Gregory F. Zoeller, Attorney General, Attorney General's Office of the State of Indiana, Tom Miller, Attorney General, Attorney General's Office of the State of Iowa, Steve Six, Attorney General, Attorney General's Office of the State of Kansas, Jack Conway, Attorney General, Attorney General's Office of the Commonwealth of Kentucky, James D. " Buddy" Caldwell, Attorney General, Attorney General's Office of the State of Louisiana, Janet T. Mills, Attorney General, Attorney General's Office of the State of Maine, Douglas F. Gansler, Attorney General, Attorney General's Office of the State of Maryland, Martha Coakley, Attorney General, Attorney General's Office of the Commonwealth of Massachusetts, Michael A. Cox, Attorney General, Attorney General's Office of the State of Michigan, Lori Swanson, Attorney General, Attorney General's Office of the State of Minnesota, Jim Hood, Attorney General, Attorney General's Office of the State of Mississippi, Chris Koster, Attorney General, Attorney General's Office of the State of Missouri, Steve Bullock, Attorney General, Attorney General's Office of the State of Montana, Jon C. Bruning, Attorney General, Attorney General's Office of the State of Nebraska, Catherine Cortez Masto, Attorney General, Attorney General's Office of the State of Nevada, Michael A. Delaney, Attorney General, Attorney General's Office of the State of New Hampshire, Anne Milgram, Attorney General, Attorney General's Office of the State of New Jersey, Gary K. King, Attorney General, Attorney General's Office of the State of New Mexico, Andrew M. Cuomo, Attorney General, Attorney General's Office of the State of New York, Roy Cooper, Attorney General, Attorney General's Office of the State of North Carolina, Wayne Stenehjem, Attorney General, Attorney General's Office of the State of North Dakota, Richard Cordray, Attorney General, Attorney General's Office of the State of Ohio, W.A. Drew Edmondson, Attorney General, Attorney General's Office of the State of Oklahoma, John R. Kroger, Attorney General, Attorney General's Office of the State of Oregon, Thomas W. Corbett, Jr., Attorney General, Attorney General's Office of the Commonwealth of Pennsylvania, Patrick C. Lynch, Attorney General, Attorney General's Office of the State of Rhode Island, Henry D. McMaster, Attorney General, Attorney General's Office of the State of South Carolina, Marty J. Jackley, Attorney General, Attorney General's Office of the State of South Dakota, Robert E. Cooper, Jr., Attorney General, Attorney General's Office of the State of Tennessee, Mark Shurtleff, Attorney General, Attorney General's Office of the State of Utah, William H. Sorrell, Attorney General, Attorney General's Office of the State of Vermont, Bill Mints, Attorney General, Attorney General's Office of the Commonwealth of Virginia, Robert M. McKenna, Attorney General, Attorney General's Office of the State of Washington, Darrell V. McGraw, Jr., Attorney General, Attorney General's Office of the State of West Virginia, J.B. Van Hollen, Attorney General, Attorney General's Office of the State of Wisconsin, Bruce Salzburg, Attorney General, Attorney General's Office of the State

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of Wyoming, and Vincent F. Frazer, Attorney General, Attorney General's Office of the U.S. Virgin Islands, were on the brief of amici curiae States of Texas, et al. in support of appellees.

Before: GINSBURG, BROWN, and KAVANAUGH, Circuit Judges.

Opinion concurring in the judgment filed by Circuit Judge KAVANAUGH.

OPINION

BROWN, Circuit Judge:

Plaintiffs appeal the dismissal of their constitutional challenge to religious elements of the presidential inaugural ceremony. We affirm the dismissal because plaintiffs' claims regarding the 2009 inaugural ceremony are moot and plaintiffs lack standing to challenge the 2013 and 2017 inaugurations.

I

Barack Obama was elected President of the United States on November 4, 2008. Prior to and following his election, organizations were formed to assist preparations for the January 20, 2009 ceremony that would mark his inauguration. The then President-elect created a private coordinating group, the Presidential Inaugural Committee (" PIC" ), recognized by statute as " the committee appointed by the President-elect to be in charge of the Presidential inaugural ceremony and functions and activities connected with the ceremony." 36 U.S.C. § 501(1). By concurrent resolution, Congress established the Joint Congressional Committee on Inaugural Ceremonies (" JCCIC" ) and authorized it to " utilize appropriate equipment and the services of appropriate personnel of departments and agencies of the Federal Government" to " make the necessary arrangements for the inauguration of the President-elect." S. Con. Res. 67, 110th Cong. (2008). The U.S. military services, pursuant to 10 U.S.C. § 2553, jointly formed the Armed Forces Inaugural Committee (" AFIC" ) to assist the JCCIC and the PIC in " [p]lanning and carrying out" security and safety measures, ceremonial duties, and other appropriate activities for the inauguration, id. § 2553(b).

Through the PIC, President Obama invited two private ministers-Revs. Rick Warren and Joseph Lowery-to lead invocation and benediction prayers, respectively, at the inaugural ceremony. President Obama also communicated his wish to John Roberts, Jr., Chief Justice of the United States,1 that the Chief Justice administer the presidential oath of office at the ceremony and append the phrase " So help me God" to conclude the oath. See Declaration of Jeffrey P. Minear, Counselor to the Chief Justice, Newdow v. Roberts, Civil Action No. 08-2248 (D.D.C. Jan. 8, 2009), App. for Appellants at 42.

While these preparations were ongoing, plaintiffs were also preparing themselves to attend or view President Obama's inauguration. Plaintiffs-who individually describe themselves as atheist, see, e.g., App. for Appellants at 125, nonreligious and nontheistic, see, e.g., id. at 126, Secularist, see, e.g., id. at 128, or humanist, see, e.g., id. at 136-were hoping President Obama would eschew the prayers and the " So help me God" phrase that have become traditional elements of the inaugural ceremony. However, upon learning these elements were scheduled to be part of the ceremony, plaintiffs sought declaratory and injunctive relief in the district court that would bar those elements for the 2009 as well as for

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future inaugurations as violations of the First and Fifth Amendments, and in particular the Establishment Clause of the First Amendment. See Complaint at 1, Newdow, Civil Action No. 08-02248 (D.D.C. Dec. 29, 2008). The complaint represented the third Establishment Clause lawsuit the lead plaintiff, Michael Newdow, has brought before federal courts against religious elements of presidential inaugural ceremonies.2 Plaintiffs also moved for a preliminary injunction six days after filing their initial complaint.

The district court, after a hearing, denied plaintiffs' preliminary injunction motion and ordered them to show cause as to why their complaint...

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